Concession charges and real estate subdivision: the concrete case
In particular, it was a building characterized by asingle real estate unit located on the ground floor and a room for industrial use on the first and second floors, as well as accommodation for the caretaker on the second floor. It was highlighted that the property, on the ground floor, was already intended for commercial use even if the original building permit from 1973 envisaged industrial use, which was subsequently changed to commercial (and in fact, the property fell in the ” D” of the PRG with commercial use and since 1988 the premises in question would always have been rented for commercial use).
With the building permit application, the aim was to splitting the commercial space on the ground floor into two distinct unitsthe first of 875.06 m2, with a rear storage room of 1,299.96 m2, therefore for a total of 2,175.02 m2 (6,525.06 m3); the second unit of 623.37 m2 with a storage room behind it of 883.05 m2, for a total of 1,506.42 m3.
The company that owns, in short, argued that there had been no change of use and that the subdivision had not required significant building works; therefore, there was no reason to ask for the charges or, at least, this request should have been limited to the part actually affected by the subdivision and not to the entire area, as instead supported by the Municipality.
The correlation between urban planning charges and burden
Already in the past, jurisprudence(1) had had the opportunity to clarify the general principle of correlation between charges and urban planning loadwith the consequence that building renovation involves the obligation to pay the charges when this burden exists, which must be found even in the case of division and subdivision of a property which transforms from one into two units, with distinct and independent entrances and services.
For the purposes of incurring the obligation to pay the charges, the occurrence of a greater urban planning burden as an effect of the building intervention is significantso it is not even necessary that the renovation affects the building globally – with changes affecting the entire external and internal parts of the building – but it is only sufficient that it results in any case the structural reality and urban usability have changedwith charges consequently referring to the objective revaluation of the property and functional to bear the additional “socio-economic” load that the construction activity entails, even when the increase in the impact on the territory results only from marginal works due to a division or subdivision of the property into two units or between two or more owners (2).
Given that, for interventions on a building already equipped with a building permit (for renovation or for change of intended use) the prerequisite for the imposition is constituted precisely by the existence or otherwise of any greater urban planning burden, it must consider the request for payment of these increased charges is illegitimate if the change in the urban planning burden does not occur(3).
In a concrete case, albeit a very old one, it was stated that the “division of the single sales room into two parts”with “erection of partitions and modification of entrances”, “in itself led to an increase in the urban planning burden imposed on the area”, with the consequent classification of the renovation in the building category and the need for the onerous building permit(4). More recently, it has been stated that the building intervention which involves the construction of six distinct real estate units, which can be used independently, in place of the pre-existing four, leads to a greater urban planning burden in relation to the increased potential for settlement in the propertywith consequent obligation to pay urbanization charges(5); similarly, the greater urban planning burden, involving the payment of charges, was asserted in the face of the splitting of a warehouse with commercial-warehouse use into two real estate units(6).
Calculation of concession charges: adjustment to the new load
The urban planning load resulting from the subdivision cannot be considered commensurate with the entire areapenalty duplication of the previous existing load and linked to the existing commercial premises subject to subdivision. In this case, the general principle of “adjustment of the concession contribution”, which can also be derived from the provisions of the art. 10, last paragraph, L. 10/1977 and art. 19, paragraph 3, of the Consolidated Construction Law (Presidential Decree no. 380/2001), for which the amount of the charges must be calculated with reference to the difference between what is foreseen for the new destination and what is related to the previous one(7).
Notes
(1) Council of State, sec. IV, sentence. 29 April 2004, n. 2611.
(2) Council of State, sec. IV, sentence. 17 May 2012, n. 2838; sent. 29 April 2004, n. 2611; TAR Liguria, section. I, heard. 28 April 2014, n. 647; TAR Tuscany, section. III, sentence. 10 July 2013, n. 1084; TAR Lazio, Rome, section. II excerpt, sentence. 22 December 2020, n. 13913.
(3) Council of State, sec. IV, sentence. 29 October 2015, n. 4950; sent. 29 April 2004, n. 2611; sec. V, sent. 13 May 2014, n. 2437.
(4) TAR Piedmont, section. I, heard. 26 November 2003, n. 1675.
(5) TAR Piedmont, section. II, sentence. 27 April 2021, n. 446.
(6) TAR Lazio, Rome, sec. II excerpt, sentence. 22 December 2020, n. 13913.
(7) Council of State, sec. II, sentence. 15 June 2020, n. 3858; sec. IV, sentence. 30 September 2019, n. 6544; sec. V, sent. 7 December 2010, n. 8620; sec. VI, sentence. 25 August 2009, n. 5059.
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